Haryana

StateCommission

CC/268/2019

VIKRAM SINGH AND ANOTHER - Complainant(s)

Versus

OMAXE LTD. AND ANOTHER - Opp.Party(s)

MANOJ LAKHOTIA

29 Nov 2021

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.268 of  2019

Date of the Institution:13.08.2019

Date of Decision: 29.11.2021

 

1.      Vikram Singh S/o Sh.Ajit Singh

2.      Mrs. Preeti Singh W/o Sh.Vikram Singh.

 

          Both R/o H.No.1421, Sector-3, Rohtak, Haryana.

 

                                                                   .….Complainants

Versus

1. Omaxe Limited, Registered office at 7 Local Shopping Centre, Kalkaji, New Delhi-110019 through its Managing Director.

 

2. M/s Omaxe Limited, North Avenue, Sector 15, Bahadurgarh through its Incharge/Manager.

 

                                                .….Opposite Parties

CORAM:   Mr.Ram Singh Chaudhary, Judicial Member

 

Present:-    Mr.Manoj Lakhotia, Advocate for the complainants.

Mr.Sanjeev Sharma, Advocate for the opposite parties.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          The brief facts giving rise for the disposal of the present complaint are that complainants had purchased the flat No.BHF/3BR/82/FIRST measuring 1820 sq. ft. in Omaxe North Avenue-II, situated at Sector 15 Bahadurgarh, which falls in the project of the opposite parties (O.Ps.), was later on transferred in the name of the complainant by the OP from the name of earlier allottee- Rajesh Mittal. The complainants being lawful transferee/permitted assignee, being innocent purchaser, stepped into the shoes of the original allottee and thus obtained all the rights and liabilities under the agreement dated  05.05.2012.  They approached for transfer of the ownership of the above said flat. However, the OPs instructed them to put signatures on the affidavit cum indemnity bonds already printed dated nil for transfer of ownership.  They raised objection, but, OPs refused to accept and transfer of the ownership unless and until the complainants sign the above said affidavit cum indemnity bonds as it is.  The complainant signed the affidavit cum indemnity bonds under fear, pressure and without free will.   As per agreement, the total sale price of the flat was fixed Rs.36,73,442.60, out of which Rs.35,16,157.37/- has been paid till the time of transfer in the name of complainants and rest of the amount of Rs.1,57,285.23/- (which is less than 5% of BSP) was to be paid at the time of offer of possession of the flat as per the payment plan. They enquired about the progress of work, but, no satisfactory response was received. OPs vide letter dated 16.12.2015 demanded amount of Rs.5,84,536.52 to be paid by 31.12.2015 and OPs again vide letter dated 30.12.2015 demanded enhanced amount of Rs.6,07,977.52 to be paid by 01.01.2016.  As per complainants, both the demand was not justified. They immediately approached the office of OPs and objected the illegal demand and requested to withdraw the same, but, this issue was not resolved and OPs was adamant to levy of unfair charges and persistently raising illegal demand, the complainants having left no options, handed over the letters to its financing Bank i.e. Axis Bank Ltd. The Financing Bank, on behalf of the complainants, as per the agreement, remitted the amount of Rs.1,50,000/- out of remaining amount of Rs.1,57,285.23/- left to be paid, to the OPs immediately, which was duly received  by the OPs on 10.02.2016 and leaving balance amount of Rs.7285.23/-, which was to be paid at the time of possession.  OPs has demanded Rs.40,100/- as Meter Cost, without mentioning its description and brand, which was not justified. OPs also demanded illegally charges of utility room cost Rs.23,112/- which was not mentioned in the agreement and Rs.1,96,524/- for the increased area of the flat without any prior consent and knowledge of the complainants.  As per agreement, the OPs had to complete the development work of the project and handover the possession of the flat within a period of 18 months alongwith further extended period of six months from the date of agreement. The agreement was executed on 05.05.2012, period of 18 months for development of project was expired on 05.12.2013 and extended period of six months has expired on 05.05.2014.  OPs failed to complete the development work of the project and handover the possession of the flat as per the agreement.  As per terms and conditions of agreement, the OPs will pay a sum of Rs.5/- per sq. ft. per month of the super area of the flat for the delay period to the complainants. They got issued the legal notice dated 16.03.2016 but it has no effect. The cause of action has firstly arisen on 05.05.2012, when the OPs has executed the agreement with the earlier allottee. Thereafter on 04.11.2014, when the complainants stepped in the shoes of earlier allottee and the OPs has assigned/transfer the ownership in favour of the complainants.  Thereafter on 05.05.2014 when the stipulated period of 24 months has come to an end and OPs has failed to complete the development work and hand over the possession of the flat.  They  requested the OPs to  handover the possession of the flat after completion of entire development work alongwith copy of completion certificate on the balance payments of Rs.7285.23/- only and  they also requested the OPs to pay compensation @ 5/- per sq. ft. per month of the super area of 1820 sq. ft of the flat for the period from 05.05.2014 till the date of handing over the possession of the flat. Thus there was deficiency in service on the part of the OPs.

2.                Upon notice, opposite party appeared and filed the written statement denying all the allegations made by the complainant.   Preliminary objections about territorial jurisdiction, pecuniary jurisdiction, complainant is not consumer, concealment of material facts etc. were also raised and requested to dismiss the complaint.

                   On merits, it was denied that the complainants purchased the flat in question for residential purpose as they were speculators who have purchased the flat for making speculative gains by selling the flat. They purchased the flat from original allottee.  The name of complainants was endorsed and substituted as allottees on 09.11.2014.  The name of complainants was duly endorsed on 09.11.2014 and before that on 17.10.2014 the complainants gave an undertaking cum affidavit accepting the factum of commencement date for offer of possession as per clause 33 (a) of allotment letter/agreement and also undertook that they shall not claim any compensation for delay for the previous period. The offer of possession would commence from 09.11.2014 and would end on 09.11.2016.  The agreement dated 05.05.2012 has already elapsed.  The value of the flat along with applicable taxes and other charges was Rs.40,85,488/- and they were liable to pay the balance amount as they have already paid a sum of Rs.36,61,371/- only.  They were liable to pay the dues charges as per the terms and conditions of the allotment letter/agreement. On 27.07.2016 the occupation certificate was granted by the competent authority, which duly proved that flat was constructed and complete prior to 27.07.2016 and possession was duly offered on completion of construction on 16.12.2015.  On 04.02.2016 they paid balance payment of Rs.1,44,752/-.   They were also liable o pay the other charges such as EDC, IDC etc. and taxes such as VAT, Service Tax or GST.  They have purchased the flat knowing fully well that flat could not be handed over within 24 months from agreement The period of 24 months from 09.11.2014 would culminate on 09.11.2016 and in the present complaint, the possession was offered on 16.12.2015. They are liable to pay the holding charges as well as interest on the delayed payments. Thus there was no deficiency in service or unfair trade practice on the part of the OPs.  The OPs respectfully prayed that the present complaint  be dismissed with costs.

3.                When the complaint was posted for recording evidence of the parties,  Mr. Vikram Singh in his evidence has tendered the affidavit  Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-7 and closed his evidence.

4.                On the other hand, in order to rebut the evidence led on behalf of the complainant, O.Ps. had also tendered the affidavit Ex.OPA that of Mr.Deepanjit Singh authorized representative of M/s Omaxe Limited and further tendered the documents Ex.R-1 to R-7  and  closed its evidence.

5.                The arguments have been advanced by Mr. Manoj Lakhotia, the learned counsel for the complainants as well as Mr.Sanjeev Sharma, the learned counsel for the opposite parties.  With their kind assistance, the entire record including documentary evidence as well as the evidence which had been led during the proceedings of the complaint has also been properly perused and examined.

6.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the basic and foremost questions which requires adjudication by this Commission is as to whether the present complainants are entitled to get compensation @ 5/- per sq. ft. per month of the super area and waiving of other charges? 

7.                While unfolding the arguments it has been argued by Mr.Manoj Lakhotia, the learned counsel for the complainants that as far as executing the buyers agreement  (Ex.C-1) is concerned it is not in dispute.  It is also not in dispute that the total price of the flat was Rs.36,73,442.60/-.  It is also not in dispute that complainant purchased the flat from the original owner and transferred the flat in on 04.11.2014.  As per the buyers agreement, the possession complete in all respect was to be delivered to the complainants by the O.Ps within (24 months + six months) 30 months from the execution of agreement.  The opposite parties illegally demanded outstanding dues alongwith holding charges and other charges. The opposite parties obtained occupation certificate without completing the basic amenities.   The price of the flat was fixed Rs.36,73,442.60, out of which Rs.35,16,157.37/- has been paid and rest of the amount of Rs.1,57,285.23/- (which is less than 5% of BSP) was to be paid at the time of offer of possession of the flat as per the payment plan.  However, the bank has paid Rs.1,50,000/- out of remaining amount of Rs.1,57,285.23/- to the OPs, which was received by the OPs on  10.02.2016, leaving the balance amount of Rs.7285.23/-.    The maximum payment has been paid by the complainants, but, the possession of the flat has not been delivered till date.  Under these circumstances, the complainants had no other option, but, to sought  Rs.5/- per sq. ft. per month of the flat for the period of delay from 05.05.2014 till the date of handing over of the possession. The counsel for the complainant further prayed for possession of the flat after completion of entire development work.  It is prayed that complaint be allowed alongwith other relief as prayed for.

8.                On the other hand, it has been argued by Mr.Sanjeev Sharma, the learned counsel for the O.Ps. that complainants have not paid  the amount as per the repayment schedule.  There was a delay in making the payment of the amount.  The total cost of flat was Rs.36,73,442.60/-.  The complainant had paid amount of Rs.35,16,157.37/-  against the flat.  It is true that the documents were executed between the parties in the shape of bond, which reveals that they shall not claim any compensation for delay for the previous period. The offer of possession would commence from 09.11.2014 and would end on 09.11.2016.  The agreement dated 05.05.2012 has already elapsed.  They were liable to pay the dues charges as per the terms and conditions of the allotment letter/agreement. On 27.07.2016 the occupation certificate has already been granted by the competent authority, duly proved that flat was constructed and complete prior to 27.07.2016 and possession was duly offered on completion of construction on 16.12.2015.  On 04.02.2016 they paid part payment of Rs.1,44,752/-.   They were also liable to pay the other charges such as EDC, IDC etc. and taxes such as VAT, Service Tax or GST.  The period of 24 months from 09.11.2014 would culminate on 09.11.2016 and in the present complaint the possession was offered on 16.12.2015 and complainants have also duly accepted that the flat was constructed and complete. They are liable to pay the holding charges as well as interest on the delayed payments.  Thus  the complaint be dismissed with costs as prayed for.

9.                 It is true that complainant is a subsequent buyer and initially the flat was allotted in the name of Mr.Rajesh Mittal by way of an allotment letter and agreement to sell Ex.C-1  dated 05.05.2012. The total cost of the flat has been mentioned as Rs.36,73,442.60.  As per clause 33 (a) of the agreement, the OPs shall complete the construction of the unit/project within a period of 24 months from the date of signing of agreement.   Two years were completed in the year 2014, however, the possession of the flat till today has not been delivered.  The complainant wants to deliver the possession of the unit and as a matter of fact, the possession of the unit can only be delivered as and when the occupation certificate is issued by the competent authority, which has not been issued till date. 

10.              As submitted by the O.Ps. that the flat was ready with basic amenities and the OPs had got issued occupation certificate by the authorities concerned. However surprisingly the OPs has not placed on the file either the copy of completion certificate or copy of occupation certificate granted by the competent authorities. Even if presuming that the authorities had issued occupation certificate, yet it was incumbent upon the OPs to have assured that the  flat was fit in every respect in terms of agreement.  The flat was to be allotted complete in all respects mere providing basic necessities, such as water supply, electricity, sewerage, drainage, rain harvesting system, LED in the building, street lighting, storm water and environmental clearance, without there being any internal fittings complete,  it cannot be considered as fit for residence.  The OPs are relying upon  letter dated 27.07.2016 treating it to be completion certificate and occupation certificate to have been issued by the concerned authority i.e. DTCP.  Perusal of the said letter shows that vide said letter the DTCP has granted permission to occupy subject to payment of Rs.24,61,425/- and with further conditions detailed below:-

“1.     The building shall be used for the purposes for which the occupation  certificate is being granted and in accordance with the uses defined in the approved zoning regulations/zoning plan and terms and conditions of the licence. Any violations of this condition shall render this occupation certificate null and void.

2.      That you shall abide by the provisions of Haryana Apartment Ownership Act, 1983 and Rules framed thereunder. All the flats for which occupation certificate is being granted shall have to be compulsorily registered and a deed of declaration will have to be filed by you within the time schedule as prescribed under the Haryana Apartment Ownership Act 1983.  Failure to do so shall invite legal proceedings under the statute.

3.      That you shall be fully responsible to supply of water as per norms till such time the colony is handed over after final completion.

4.      That you shall be solely responsible for disposal of sewerage and storm water of your colony till such time these services are made available by HUDA/Competent Authority as per their scheme.

5.      That you shall obtain the connection for disposal of sewerage and drainage from HUDA  within 15 days after laying the services to the point of external services on payment of prescribed fee and charges including the cost of such connection. You shall also maintain the internal services to the satisfaction of the Director till the colony is handed over after granting final completion.

6.      That in case some additional structures are required to be constructed as decided by HUDA at later stage, the same will be binding upon you.

7.      That you shall maintain roof top rain water harvesting system properly and keep it operational all the time.

8.      The basements and stilt shall be used as per provisions of approved zoning plan and building plans.

9.      That you shall comply with all the conditions laid down in the Memo No.312/FSB dated 15.07.2016 of Fire Station Officer, Bahadurgarh (Jhajjar) with regard to fire safety measures.

10.    That you shall comply with all the conditions laid down in registration of lift issued vide memo NO.2152 dated 19.11.2015 by Executive Engineer, Electrical Inspectorate Haryana, Hisar.

11.    That you shall comply with all the stipulations mentioned in the Environment Clearance issued by Ministry of Environment and Forests. Government of India vide No.21-750/2007-IA.III dated 14.03.2008.

12.    That you shall comply with all the stipulations mentioned in the consent to establish from Pollution Angle issued by Haryana State Pollution Control Board, Panchkula vide NO. HSPCB/2007/TAC-1/100/46 dated 09.02.2007.

13.    The day & night marking shall be maintained and operated as per provision of international Civil Aviation Organization (ICAO) standard.

14.    That the outer façade of the buildings shall not be used for the purposes of advertisement and placement of hoardings.

15.    That you shall neither erect nor allow the erection of any communication and transmission tower on top of the building blocks.

16.    That you shall use light-emitting diode lamps (LED) in the building as well as street lighting.

17.    That you shall impose a condition in the allotment/possession letter that the allottee shall used light emitting diode lamps (LED) for internal lighting, so as to conserve energy.

18.    That you shall apply for connection for services including electricity within 30 days from the date of issuance of occupation certificate and shall submit the proof of submission thereof to this office.

19.    That provision of parking shall be made within the area earmarked/designated for parking in the colony and no vehicle shall be allow to part outside the premises.

20.    The occupation certificate shall be void abnitio, if any of the conditions mentioned above are not complied with.

Without compliance of these conditions it cannot have been treated as occupation certificate for all intents and purposes nor this can be treated and used by the OPs as occupation certificate free from conditions.  OPs has not placed on the file any evidence for compliance of these conditions  and in specific about  connection  of water, electricity,  sewerage and storm water etc. More particularly, whether the conditions imposed by the competent authorities while granting  occupation certificate, a conditions included the provisions of electricity, such as water supply, sewerage, drainage, rain harvesting system, LED in the building, street lighting, storm water and environmental clearance etc., which were certainly basic necessities for residence.  This was certainly an unfair trade practice on the part of the OPs by giving offer of possession for incomplete building and charging exorbitant holding charges  and other charges from the complainants. 

11.              It is true that as per clause 33 (e) of the agreement,   in case of delay in construction the company would pay Rs.5/- per sq. ft. per month for the super area for the period of delay to the buyer.  Clause 33 (e) is very important, which is as under:-

          33(e) However, in case of delay in construction of the said unit attributable to the delay of the company subject to clause [a] & [b] herein above, the company would pay to the buyer a sum of Rs.5/- [five rupees only] per sq. ft. per month for the super area for the period of delay.

12.              Since the possession has not been delivered till today, the OPs are liable to pay Rs.5/- per sq. ft per month for the super area for the period of delay. 

13.              The price of the flat was fixed Rs.36,73,442.60, out of which Rs.35,16,157.37/- has been paid and rest of the amount of Rs.1,57,285.23/- (which is less than 5% of BSP) was to be paid at the time of offer of possession of the flat as per the payment plan.  However, the bank has paid Rs.1,50,000/- out of remaining amount of Rs.1,57,285.23/- to the OPs, which was received by the OPs on  10.02.2016, leaving the balance amount of Rs.7285.23/-.   The maximum payment has been paid by the complainants, but, the possession of the flat has not been delivered till date.  As such all the questions are answered in the affirmative.

14.              In the light of the above observations, we are of the considered view that the opposite parties are found deficient in rendering proper service to the complainants and have indulged in unfair trade practice.  Hence, the present complaint of the complainants deserves to succeed against the opposite parties.  Accordingly, the complaint stands allowed  and directed the OPs to hand over the physical possession of the flat after completion of entire development work alongwith copy of completion certificate issued by the competent authorities or the department, on the balance payments of Rs.7285.23/- only.  The OPs are also directed to pay compensation @ Rs.5/-(rupees five only) ft. per month of the super area 1820 sq. ft. of the flat for the period of delay from 05.05.2014  till the date of handing over the physical possession of flat to the complainants.  The OPs are also directed to waive off the holding charges as well as charges of interest on the delayed payment and all other charges levied on the complainants.
The OPs are also directed to pay interest @ 12% p.a. on the total amount paid by the complainants from 05.05.2014 till realization. The OPs are also directed to pay compensation of Rs.2,00,000/- (Two lacs only) on account of deficiency in service, harassment and mental agony suffered by the complainants by the  acts of the OPs alongwith Rs.55,000/- as litigation expenses. In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainants would further be entitled to get the interest @ 15% per annum, for the defaulting period.   It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attracted. 

 

November 29th, 2021                                             Ram Singh Chaudhary,                                                                                 Judicial Member                                                                                 

S.K.(Pvt.Secy